The Judges

Years ago I read a book by Martin Mayer called The Bankers that explained more about the economy and monetary policy than I had really understood before. So, running across his latest book, The Judges, I was interested in what he would have to say about this unusual profession whose members I’ve come to appreciate more and more as I do more and more in corrections sentencing.

In some ways, I finished the book disappointed. I didn’t remember his style being as frequently pompous and condescending or the unfortunate story-telling name-dropping that someone with his age and experience can sometimes fall into, like your great-uncle at Thanksgiving. He plunked in some regrettable asides that served no purpose but to aggravate (unlike what we bloggers do) and spent too much time impressing us with depth that included discourses on tax and administrative court judges, which were of course germane given the title but really unnecessary. And most of all, the book is in such large print that it made me feel old. It felt like the publishers had had to do proofs for him to read at his age and then somehow forgot to fix the print back when he was finished. With regular print, the book would be half its size, which may actually explain everything.

Still, there is value in the book, mostly for the “corrections” half of our corrections sentencing readers. You get full chapters on histories of federal and state courts, judicial proceedings (trial and appellate), problematic selection processes, jurisprudence, and lots and lots of quotes from the big names of American law. Most of all, you get a consistent and supported tone of disappointment with what our legal process has become, a recognition that, were we to start over again, we would very doubtfully opt for what we currently have. He cites a retired federal judge specifically on that point: “If you were to design a legal system today, from scratch, you would regard the one we have as the worst imaginable.” With the problems portrayed herein (and in other recent books like Steve Bogira's Courtroom 302), you see why. Judges dumped into jobs with little training or oversight, prosecutors and defenders out to “win” regardless of the effect their disdain for truth and justice from the public’s perspective has on the legitimacy and long-term health of and support of that public for what they do and for law itself. By the time you’re through about 80% of the book, you’re likely to be shaking your head and thinking, “This is the best we can do?”

But then Mayer hits his stride and reminds me why I enjoyed the previous book so much. He starts looking at the future, of the courts and what they’re likely to be facing, and tells us that much of the work to deal with it all is actually already beginning. We’ve talked here several times about the need for more groundwork on prepping judges well for the scientific issues that face them with TECHNOCORRECTIONS and other developments, and, as he makes clear, courts have not used even the research capabilities they have in their own institutions, like the Federal Judicial Center or the US Sentencing Commission, to their fullest potential. But it turns out, though, that many are being proactive, for example, forming state partnerships to promote creation of scientific resources for judges. In fact, the concept of “resource judges” that they’re creating, “jurists who acquire advance bioscience and biotechnology knowledge, along with a repertoire of related adjudication skills . . . ,” is exactly what’s needed and extremely encouraging.

Even better, though, is his treatment of the loss of authority in the courts in recent years and the directions that loss is taking us. He rightly describes how the move to deauthorize judges is part and parcel of a general social deauthorization effect that’s affected teachers, doctors, clergy, other authorities. For one group, it’s HMOs, for another, “No Child Left Behind.” For judges, it’s mandatory minimums and sentencing guidelines. And, given the lack of real training and supervision provided for judges which he details, frankly, those actions don’t seem all that misguided. But the effect, as mentioned above, is to lead frustrated policymakers to search for ways to reintroduce concepts like fairness and justice into the trial players’ heads through overt techniques like drug and other therapeutic courts, not to mention the mediation and other restorative justice efforts going on. (I’m not a big Martin Luther fan, but Mayer gives a great quote in this regard: “Great jurist; bad Christian.” He also quotes Justice Frankfurter (and after all these years, I still can’t help smiling as I type that) more specifically: “[Judgment] must rest on fundamental presuppositions rooted in history to which widespread acceptance may fairly be attributed.”)

His quick overview of “problem-solving courts” at the end of the book tells you where the public dissatisfaction with the usual adversarial trial process is likely to lead us, and he rightly praises the movement and its advocates highly. It’s one of the encouraging realities of our present corrections sentencing world. But Mayer finishes with a recommendation that would move us a long way toward restoring public confidence and legitimacy in what courts do. The rec? “. . . the easiest and perhaps most important reform of the American judiciary in the years ahead is the establishment of a career path that will lead to professional judges meeting professional criteria,” complete with using that famously irrelevant third year of law school for specific training and credentialing. Most of the problems associated with politicized selection of judges, overreliance on attorney plea deals, ignorance of issues placed before them, and others Mayer addresses or readers conjure as they read would be positively affected by this fundamental reform.

Will it happen? Not likely, of course. And Mayer drops us back into depression as he explains why to close the book. “. . . because so many of our judges, lawyers, and political leaders are not just content but proud of the (charitably) second-rate judicial system we have today. In the long view, the true importance of the problem-solving court may turn out to be its more or less inadvertent demonstration that our justice system has been moving in the wrong directions. What the country—any country—needs is courts on the lower level that are acutely conscious of the practical impact of their decisions—in short, of something that might be called justice—and courts on the higher appellate level that start their deliberations with trust in history and the accumulated wisdom of precedent. . . . Instead, we have trial courts supposedly tightly bound by law from the past, held to that law by the advocacy of the lawyers in the courtroom, staffed by judges who come into their jobs with practical experience as lawyers but without noticeable training and sometimes without much aptitude for the work.”

Then the kicker: “Historically, the law and the role of law in governance have been subjects that commanded the best minds in the nation. We don’t have that quality of discourse now, perhaps because the best minds have been sidetracked into intellectually trivial stuff by the enormous rewards in the market for both corporate and tort lawyers. But the most important subjects tend over time to draw the attentions of the best people, and the defects in our judicial system have become damaging enough to qualify.”

That should be enough to get the “sentencing” half of folks in corrections sentencing drawn in, shouldn’t it?